Barack Obama and Jewish Law

Orin Kerr has a post at the Volokh Conspiracy in which he asks “Who Would Barack Obama Nominate to the Supreme Court?” Kerr brings a few quotes from Barack Obama regarding judges, one of which is,

I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they rule, but it’s their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.
. . . [S]ometimes we’re only looking at academics or people who’ve been in the [lower] court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that’s the kind of person I want on the Supreme Court.

or

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

Some legal commentators of a conservative bent are ready to man the barricades to prevent the destruction of the Supreme Court at the hands of activist judges (see here for one upset legal conservative). Keeping in mind that it is impossible to determine one’s approach to the appointment of judges on the basis of a few quotes, and that reasonable people can have different opinions about the role of an institution such as the Supreme Court, whether it be in the US or in Israel, all of this is quite interesting in light of one of the books that I bought at the SOY Seforim Sale. I was lucky enough to be able to buy a copy of Daniel Sperber’s Netivot Pesikah. As in his previous book, Darkah shel Halakhah, Prof. Sperber argues that the posek, Jewish legal decider, is required to show empathy for the dignity of the individual and to take into consideration the financial situations of people, among other things. As Prof. Sperber himself has said regarding the latter concern,

[The] poseq will seek a way to rule leniently within the framework of normative halakhah in order to avoid an undue burden on the poor person.

Regarding human suffering, he has written,

[Enhancing] human comfort and avoiding human suffering must be central components in halakhic thought and decision-making.

The above two quotes are from Sperber’s article, “‘Friendly Halakhah and the ‘Friendly’ Poseq”, which served as the kernel for a section of his latest book Netivot Pesikah. All too often it seems that many people who are considered to be halakhic authorities have an extremely narrow view of the dignity of the individual or human suffering, or at least only apply that to a limited audience, and those who do hold these values dear, aren’t very familiar with halakhah and/or their communities aren’t very interested in it, although sometimes it is unclear which came first.

I fixed the link. Thanks for pointing it out. If it still doesn’t work, tell me.

Menachem

5

Shlomo:
March 24th, 2008 at 5:51 pm

R’ Sperber is correct in saying that Chazal were willing to make what we see as drastic changes to halacha in response to moral imperatives. Of course there are situations when one must simply deal with an adverse command, as in Akedat Yitzchak, but very often Chazal were able to find the halachic flexibility to avoid such situations.

It is one thing to say that Chazal could take advantage of this flexibility, though, and quite another to say that we can. The last two thousand years have seen a steady movement in the direction of greater uniformity and rigidity, as each generation has tended to reach conclusions on certain issues while seeing the decisions of its ancestors as beyond reconsideration. While the doctrine of “chadash assur min hatorah” is a 19th century invention (ironic as that is), even before that the achronim had felt bound by the consensus of rishonim, and the rishonim by the gemara. As the gaps in halachic codification have closed, the posek’s task has gradually shifted from choosing the most moral option out of a menu of possibilities, to finding the only navigable path through a thicket of relevant earlier opinions. 1500 years of precedent indicate that the process of psak does not allow us the freedom which Chazal once possessed. We may perhaps learn from “Ravina veRav Ashi sof hora’ah” that Chazal’s job was to make halacha, while our job is simply to interpret as best we can the halacha that already exists.

As R’ Sperber mentions, “[Eliezer] Berkovits sought to forge a comprehensive philosophical-moral-halakhic theory; it is doubtful that he succeeded in doing so.” That is exactly the problem. As long as no such a theory exists, R’ Sperber’s ideas will rest on shaky foundations.